Cullinane and Secretary, Department of Employment and Workplace Relations
[2006] AATA 1078
•14 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1078
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/502
GENERAL ADIMISITRATIVE DIVISION ) Re CHARLES CULLINANE Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date14 December 2006
PlaceBrisbane (Heard in Cairns)
Decision Tribunal affirms the decision under review.
...............Signed..................
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – member of a couple – not living separately and apart under the same roof – accumulation of factors – Tribunal affirms the decision under review
Social Security Act 1991 (Cth) ss 4(2)(a)(b), 4(3)
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
In the marriage of Todd (No 2) (1976) 9 ALR 401
REASONS FOR DECISION
14 December 2006 Deputy President P E Hack SC Introduction
1.The applicant, Mr Charles Cullinane, is the recipient of a disability support pension. He is being paid at the partnered rate on the basis that the respondent considers him to be a member of a couple as that expression is used in the Social Security Act 1991 (Cth). The applicant says that he is not a member of a couple; instead, he says that he is living separately and apart from his spouse.
2.The issue I have to decide is whether the respondent’s decision that the applicant was a member of a couple is correct.
Background
3.The applicant married in 1979. With the exception of periods when he was in gaol the applicant has either resided with, or under the same roof as, his spouse. Also part of the household at all material times was the daughter of the applicant and his spouse and the daughter’s son, the grandson of the applicant and his spouse, a toddler soon to have his second birthday.
4.The applicant was released from gaol on 3 February 2006 having served a sentence of imprisonment imposed for offences most simply described as receiving social security benefits at a single rate whilst in a marriage-like relationship. There were, as well, earlier proceedings in the Tribunal[1] in which it was concluded that during the period 1991 – 2003 the applicant was not living separately and apart from his spouse.
[1] See [2004] AATA 789.
5.Upon his release from gaol the applicant returned to the residence in which his wife, their daughter and the grandson were living. His evidence was that his daughter had told him that she had made enquiry of Centrelink and had been told that if he had a separate room and separate arrangements then he would be regarded as being single. That advice, if given[2], would be a gross oversimplification of the statutory provisions and I mention the applicant’s understanding of the conversation only to explain the actions taken by him.
[2]I should say, in fairness to Centrelink, that there is a file note dated 2 February 2006, that puts a different complexion on the conversation.
6.The applicant says that upon his release he was initially paid disability support pension at the single rate on the basis that he was separated from his spouse while living under the same roof. He completed a detailed questionnaire on 21 February 2006. He was interviewed at some length on 9 March 2006 by a Centrelink officer for the purposes of completing another questionnaire.
7.On 14 March 2006 a decision was made that the applicant was not separated from his spouse. The decision was affirmed on reconsideration on 13 April 2006 and by an authorised review officer on 10 May 2006. It was affirmed by the Social Security Appeals Tribunal on 26 June 2006.
8.The applicant seeks a review in this Tribunal.
The statutory setting
9.In the context of the Social Security Act the issue of whether a recipient of benefits is single or a member of a couple is of some importance. A recipient who is a member of a couple receives benefits at a lower rate and the assets and income of the other member of the couple are taken into account when determining entitlement to benefits.
10.In the present factual context it is sufficient to note that s 4(2)(a) of the Social Security Act has the effect that a person is a member of a couple for the purposes of the Act if:
the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis.
11.The matters required to be considered in forming the opinion that a person is living separately and apart on a permanent or indefinite basis are described in s 4(3) in these terms:
In forming an opinion about the relationship between two people for the purposes of paragraph 2(a) or subparagraph of (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including;
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.
The legal principles
12.Mr Black, who appeared for the Secretary, relied upon the decision of O’Loughlin J in Staunton-Smith v Secretary, Department of Social Security.[3] There, in a context similar to the present, his Honour had referred with approval to the following passage from the judgment of Watson J in In the marriage of Todd (No 2):[4]
Separation can only occur in the sense used by the [Family Law] Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or alternatively, act as if the marital relationship had been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of marriage by both spouses in public and private relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
[3] (1991) 32 FCR 164.
[4] (1976) 9 ALR 401 at p. 403.
13.The submission for the Secretary was that a comparison should be undertaken between the position of the relationship as it was established in the earlier Tribunal decision and the position of the relationship as at March 2006 in order to decide whether there has been a sufficient change in circumstances to alter the overall conclusion. The submission was put in these terms:
The Secretary contends that the present review must be conducted on the basis that the applicant was not living separately and apart from [his spouse] between 1991 and 2003 (and therefore a member of a couple), as previously determined by this Tribunal. This means that if the applicant’s present circumstances do not differ in any significant way from his circumstances as described in the Tribunal’s earlier decision, it must be concluded that the applicant remains a member of a couple.
14.Whilst I accept that it is not open to the applicant to seek to impeach the factual findings of the earlier decision (and I should add that he does not seek to do so), I am unable to accept the balance of the submission. As it seems to me my task is to examine the evidence of the relationship as at March 2006, having regard to the all the circumstances of the relationship, including the matters set out in the statute. One of the circumstances is that the applicant and his spouse have a relationship that has existed for a long period of time.
15.More useful guidance is obtained from the decision of French J in Pelka v Secretary, Department of Family & Community Services.[5] Whilst his Honour was there discussing a marriage-like relationship, the creature of s 4(2)(b) of the Social Security Act, the opinion about such a relationship is to be formed in the same way as the opinion about living separately and apart. Thus I consider that some of his Honour’s observations are pertinent to the task that I have. His Honour said:[6]
[5] (2006) 151 FCR 546.
[6] Id. pp. 555-6, par. [46].
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2.Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other.
3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4.Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those that weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
16.I acknowledge immediately that the issue of the existence of a marriage-like relationship (the issue in Pelka) and the present issue of living separately and apart call for separate and distinct enquiries. But his Honour’s approach seems to me, with respect, to provide most useful guidance in the approach to be taken when considering the issue of living separately and apart.
17.When giving his evidence the applicant addressed, in turn, each of the matters set out in s 4(3). There was no challenge to his evidence and I must say that I found him to be an impressive witness, albeit that he has a somewhat coloured view about Centrelink and its officers. I do, however, accept his evidence.
18.I should start with a general description of the overall relationship. The applicant married in 1979. He says that he regarded the relationship as having ended in 1990 when he and his spouse commenced sleeping in separate beds. That is, I think, too narrow a perspective from which to determine the existence of a relationship but it helps in an understanding of the applicant’s viewpoint. At an earlier time the applicant and his spouse shared a bedroom, however from his release from gaol in February 2006 he has occupied a separate bedroom in the house. His spouse occupies another bedroom and the daughter and her son occupy a third.
19.Within the applicant’s bedroom he has his own television set, video, radio, fan and bed. There is another area, on the back patio, which the applicant regards as “his”. It has a television set which he owns. His wife may watch television there but only if the applicant is not doing so. It appears from the applicant’s answers to the 21 February 2006 questionnaire[7] that he does not occupy these areas exclusively.
[7] The applicant swore to the correctness of his answers when giving evidence.
20.There is a single kitchen and bathroom. The applicant says that he does not, himself, use the kitchen, instead his daughter does all his cooking for him and he generally eats his meals in the back patio area. The applicant otherwise shares, in the sense of having access to, the living areas and the utility areas (kitchen, laundry and bathroom). He has the use of household goods.
21.The applicant does not do any housework; that seems to be done in the main by the daughter. The applicant tends to the gardening, but within the limits imposed by a back condition that he suffers from.
The financial aspects of the relationship
22.The applicant and his spouse do not have any joint assets or liabilities. The applicant told me that the house is rented, in the name of the spouse, and the applicant pays rent to the daughter of $100.00 per fortnight. The daughter, he said, adds her share of the rent and, in turn, pays the combined sum to the spouse who pays rent to the landlord.[8] The daughter purchases groceries for the applicant and he pays her whatever is necessary by way of reimbursement. He pays half the cost of the telephone and electricity.
[8]This appears to be at odds with the account given in the 21 February 2006 questionnaire in which the applicant said that he paid rent of $95.00 per week out of a total of $190.00 per week.
23.The spouse is the beneficiary of the applicant’s will made as long ago as 1972. The applicant said that he had not got around to changing it. In addition the spouse is the nominated beneficiary in relation to the applicant’s occupational superannuation fund. These two matters seem to me to be of little or no consequence. The applicant seemingly has no assets to dispose of in his will and the superannuation fund has a value of about $60.00.
The nature of the household
24.The applicant and his spouse do not have any joint responsibility for providing care and support for any children but the nature of the household is such that they form part of a household of which the daughter and grandson are also a part. The applicant baby-sits the grandson on a regular basis.
25.The spouse works as a chef five days per week from 2 pm to 10 pm and the applicant sees, and talks to, the spouse most days. The daughter does the applicant’s housework except that he puts the washing on, hangs it out and collects it from the washing line. The washing may include not only his clothes but also clothes of the other members of the household.
The social aspects of the household
26.The applicant considers that so far as the relatives of the applicant and his spouse are concerned they remain a married couple.
27.The applicant and his spouse have no joint social life beyond the very occasional birthday party. The applicant has no friends, so on those occasions does not invite any guests however he might speak to the husband of a good friend of his wife. This person visits the house frequently to see the wife and is aware of the “separated” nature of the household. The applicant does not bother going out but sometimes his spouse and daughter go out to the shops together.
28.There has been no sexual aspect to the relationship since 1990.
The nature of the commitment to each other
29.The relationship, according to the applicant, broke down many years ago. But despite that the applicant and his spouse still converse on a regular basis. There is none of the bitterness or acrimony that frequently and notoriously attends many marriage breakdowns. The applicant has not taken any steps to obtain a decree of dissolution of the marriage; he does not see any reason why he should do so. He is content with the relationship as it presently stands.
30.There are some aspects of the applicant’s life that he does not share with her. For example, he proposes to take proceedings for compensation but has discussed those plans with his daughter but not his spouse. Although his spouse and daughter and grandson visited him in prison the daughter was the main visitor, his spouse was there mainly to look after the grandson. He did not discuss his release from gaol with his spouse whilst a prisoner. The arrangement of the household came about through the persuasion of his daughter. That is, his daughter made the arrangements with his wife, he did not.
The nature of the relationship
31.Despite the urgings of the Secretary I do not propose to decide this case by a comparison between the evidence in this case and that in the earlier case. I do, however, adopt from the earlier case the observation[9] by Senior Member McCabe that:
Not all relationships are happy, and they do not always conform to the stereotypes of family life.
[9][2004] AATA 789 at par. [16].
The question I have to decide is whether, having regard to this evidence, the applicant and his wife are living separately and apart. In my view they are not.
32.I reach that conclusion having regard to the evidence that I have set out. The relationship is not of a conventional nature but the statute does not require a qualitative assessment of the relationship. The relationship is obviously one that the applicant and his spouse are comfortable with and, as I have said, the applicant has no plans to seek a dissolution of the marriage. Nor, seemingly, does the spouse.
33.In coming to this conclusion about the nature of the relationship I have compared the relationship to one where the benefit recipient was merely a paid lodger, getting board and residence upon a purely commercial basis. Such a relationship would not make the lodger and landlord members of a couple. But the applicant’s relationship with his spouse seems to me to be so much more than that of lodger and landlord. There is no great emotional element to the relationship but that, of itself, does not matter. The applicant is, in reality, sharing the house. He has primary, but not exclusive, access to two areas within it and access to all of it. He undertakes domestic and garden tasks for the benefit of the whole of the household. On occasions, albeit few, he socializes as a member of a common household. While there are no assets owned jointly there was a “pooling” of funds in the sense described by French J in Pelka.[10] What makes the case unusual is that the funds were paid to the daughter but, on the evidence of the applicant, this arrangement was quite different to, for example, the commercial arrangement that might exist between lodger and landlord.
[10] Supra n.5 at par. [52].
34.This is not a case where any particular feature stands out as dictating a conclusion that the applicant and his spouse are not living separately and apart. Rather it is one where I reach that conclusion from the accumulation of the evidence.
35.It follows that I would affirm the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ...................Signed......................................................
Leisa Pendle, AssociateDate of Hearing 29 November 2006
Date of Decision 14 December 2006
Applicant in person
Solicitor for the Respondent Mr M Black, Centrelink Legal Services
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